Bangalore District Court
M/S Goodsmover Technologies vs M/S Rane T4U Private Limited on 10 January, 2025
KABC010057232021
IN THE COURT OF THE LXIII ADDL.CITY CIVIL
& SESSIONS JUDGE (CCH-64) AT BENGALURU
Dated this the 10th day of January, 2025
: PRESENT :
Sri. I. P. Naik
LXIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.
Crl.A.No.189/2021
APPELLANTS : 1. M/s. Goodsmover Technologies,
A partnership firm having its
business at No.31, Shankar Mutt
Road, Basavanagudi,
Bangalore-560 004.
2. Mr.N.Gopala Krishna,
Partner, M/s. Goodsmover
Technologies, having its office at
No.31, Shankar Mutt Road,
Basavanagudi,
Bangalore-560 004.
2 Crl.A.No.189/2021
3. Mrs. G.Nandini,
Partner, M/s. Goodsmover
Technologies, having its office at
No.31, Shankar Mutt Road,
Basavanagudi,
Bangalore-560 004.
4. Mr.G.Sudhir,
Partner, M/s. Goodsmover
Technologies, having its office at
No.31, Shankar Mutt Road,
Basavanagudi,
Bangalore-560 004.
5. Mr.C.V.Kumar,
Partner, M/s. Goodsmover
Technologies, having its office at
No.31, Shankar Mutt Road,
Basavanagudi,
Bangalore-560 004.
(by Sri.KNN - Adv)
-V/s-
RESPONDENT : M/s. RANE T 4 U Private Limited,
(Formerly known as Telematics 4
U Pvt Ltd.,)
A Company incorporated under
the provision of Companies Act,
having its registered office at
No.9, 1st Main Road, New BEL
Road, Sanjaynagar,
3 Crl.A.No.189/2021
Bangalore-560 094.
(Sri-MLP., adv )
JUDGMENT
The appellant No.1 to 5 have preferred this appeal against the Judgment and Order passed by the learned XX ASCJ and ACMM and MACT Bengaluru in C.C.No.1250/2018 dated 04.01.2021. The Appellants are accused No.1 to 5 and respondent is complainant before the trial court. Hereinafter, their rank is referred as per the their rank before the trial court.
2.The factual matrix of case:-
The complainant company is registered under the Companies Act and engaged in the business of providing technology, enable software Services etc., Further providing various services such as remotely 4 Crl.A.No.189/2021 hosted and managed software services, technology support services, business consulting services, software customization services etc., to Local Telematics Service providers.
3. The complainant filed private complaint before the learned Trial Court against the accused company by name and style Telematics4u Services Private Limited alleging that, they have committed an offence P/U/Sec. 138 of N.I.Act. Further, the accused No.1 is partnership firm. The accused No. 2 to 5 are Managing partners of accused No.1 firm. Accused No.1 and complainant entered into the MOU on 14.07.2007. As per the said MOU, the complainant provided services to the accused No.1 and also issued notice. Based on that, the 5 Crl.A.No.189/2021 accused No.1 was making payment in terms of the vari- ous invoices issued by the complainant.
4. Since June 2015, accused have abruptly stopped making payments. Accused are liable to pay amount of Rs.51,27,561/-. Accused agreed and confirmed that they have not paid amount due outstanding up to 35,63,530/-. He admitted that they have to repay the due till October 2017. i.e., amount of Rs.51,27,561/-. In order to repay the said amount, the accused have issued chequse bg.No.000915 for Rs.10,00,000/- and another cheque bg.No.000916 for Rs.5,00,000/- on 10.01.2018. The complainant presented the said cheques for encashment. Both the cheques are returned with endorsement as payment stopped. In this regard, the complainant got issued statutory notice to 6 Crl.A.No.189/2021 the accused No.1 to 5. In spite of service of notice, they have failed to pay the amount covered under the cheque and replied to he said notice within untenable reasons. After that, the complainant filed private complaint before the trial court alleging that, the accused have committed alleged offence.
5. On considering allegation made in complaint and documents produced by the complainant, the learned Trial Court took cognizance for alleged O/P/U/Sec 138 of N.I.Act. Thereafter, sworn statement of complainant is recorded. On considering materials available on record, learned Trial Court opined that, there is prima facie case and sufficient materials to proceed against accused persons. Accordingly, criminal case has been 7 Crl.A.No.189/2021 registered against accused persons in Register-III and issued process against them.
6. In pursuant to the Summons, accused persons have appeared through their respective counsel before the Trial Court and got enlarged on regular bail. Thereafter, plea has been recorded and readover to them. Accused have pleaded not guilt and claims to be tried. Hence, case is posted for evidence.
7. The complainant has got examined one witness as PW.1 in support of oral evidence produced 52 documents and same are got exhibited at Ex.P.1 to Ex.P.52. After completion of the evidence of the complainant, statement of the accused is recorded U/s.313 of Cr.P.C. accused has denied the 8 Crl.A.No.189/2021 incriminating evidence. They have chosen to lead evidence, accused No.4 examined as DW.1 and 6 documents are got marked as Ex.D.1 to Ex.D.6.
8. After hearing, the learned Trial Court has con- victed the accused persons for the alleged offence. The accused dis-agreed and dis-satisfied with the said Judgment, preferred the appeal on the following grounds that, cheques are issued for collateral security purpose. There is dispute in respect of service rendered, between the complainant and the accused. In this regard they have send e-mail on 11.07.2016. Accused have issued two cheques for security purpose for regularising the account of the accused No.1. Same is reflected on 02.07.2016. It can be looked into the documents and ledger statement maintained by the 9 Crl.A.No.189/2021 accused No1. The trial court has not considered the cheques in question issued in the year 2016 and same are misused in the year 2018. The complainant has admitted regarding invoices produced by him, did not reflect price of the rate per vehicle and same is not con- sidered by the trial court. The complainant failed to produce the invoices to show that the accused No.1 re- ceived acknowledgment. There is an inconsistent alle- gations created in the complaint. The trial court has failed to consider the ledger statement Ex.P.6. The ac- cused has proved the legally enforceable debt success- fully and rebutted the presumption and there is no legally enforceable debt as on the date of filing of the complaint. The complainant misused the cheques, this facts reflects from the ledger statement Ex.P.8. The trial court has misdirected and calculated the cheque 10 Crl.A.No.189/2021 amount and also confession regarding e-mail send to bank and complainant.
9. Cheques Ex.P.35 and 36 are issued during 2016 not 2018. During trial, the Trial Court has failed to consider the letter issued by bank for stop payment on 14.03.2017 and it is inter connected to the complainant. The trial court completely failed to give attention on the stop payment letter. The accused are not liable to the claim made by the complainant. There is no legally enforceable debt. The trial court has committed error by convicting the accused persons. Hence, prays the appeal and acquitted the accused persons by setting side impugned Judgment and Or- der.
11 Crl.A.No.189/2021
10. After registration of appeal, issued notice to complainant. On receipt of notice the complainant ap- peared through counsel.
11. Heard arguments, both side.
12. The learned counsel for the accused submitted that there is dispute regarding transaction taken place between the complainant and the accused. But the accused has issued cheque in dispute for security purpose in the year 2016. This fact discloses from counter foil of the cheque book maintained by the accused, which is got marked at Ex.D.1. This itself discloses that the cheque is not issued within 6 months from the date mentioned thereon. Further, this con- tention is corroborated from the E-mail Ex.D.2 dated 12 Crl.A.No.189/2021 11.07.2016. Accused No.1 fully paid and cleared the outstanding dues towards the complainant. The trans- action taken place between January 2017 to August 2018 between them was closed. After that, the accused issued Stop Payment instructions to their bank, prior to presentation of the cheque. The learned Trial Court has wrongly assessed the bank intimation Ex.D.5. The accused have issued Stop Payment intimation on 14.03.2017 not no 03.04.2018. In this regard, Bank has issued letter on 03.04.2018. The learned Trial Court wrongly appreciated these dates in the impugned Judgment. This itself is not a ground for convicting the accused.
13. The learned counsel for the accused heavily relied on the Bank statement which discloses that the 13 Crl.A.No.189/2021 regarding cheques except Ex.P.35 and Ex.P.36. Therefore, it clearly discloses that the complainant mis- used the blank cheques Ex.P.35 and Ex.P.36 for his wrongful gain. There is no legally enforceable liability on the part of the accused. The accused have successfully rebutted the presumption. The learned Trial Court has not at all considered the proved facts on behalf of the accused. Hence, prays to set side the impugned judgment and acquit the accused persons from alleged offence.
14. The learned counsel for the accused has relied on the Judgment in support of his contentions as under:-
(2013) 3 SCC 86 Vinay Vs. Lakshman (2010) 11 SCC 441 Rangappa Vs. Sri.Mohan.14 Crl.A.No.189/2021
(2019) 5 SCC 418 Basalingappa Vs. Mudibasappa 2001 SCC Online Mad 922 Angn Parameswari Textiles (P) Ltd & Ors Vs. Sri. Rajam And Co., 2008 SCC Online Ker 254 Joseph Sartho Vs. Gopinathan & Anr.
(2010) 11 SCC 441 Rangappa Vs. Sri.Mohan.
15. As against this, the learned counsel for the complainant submitted that, in this case there is no dispute regarding the transaction taken place between the accused No.1 and complaint. DW1 unequivocally admitted in his cross-examination that Ex.P.35 and P.36 are issued towards partial discharge of the debt of accused. Further admitted that the complainant filed suit for recovery of money of Rs.51,27,561/-. The documents produced by the complainant clearly dis- 15 Crl.A.No.189/2021 closes regarding existence of liability, which is legally enforceable one. In order to repay the debt they have issued cheques in question. Therefore, accused failed to rebut the presumption available in favour of the complainant. Hence, prays to reject the appeal.
16. In support of his contentions, the learned counsel for the complainant has relied on the following decision:-
1971 (2) SCC 617 M/S Bareilly Electricity Supply Com.Ltd Vs The workmen & Ors AIR 1983 BOMBAY 1 Om Prakash Belis & Anr Vs Unit Trust of Ind & Ors (2015) 9 SCC 766 Umaswamy versus Ramanath reported in III (2007) BC 211: and;
Nandkishore Lal Bhai Mehta Vs New Era Fabrics Pvt Ltd & Ors AIR 1998 SC 1057 16 Crl.A.No.189/2021 M/s Modi Cements Ltd Vs Sri Kuchil Kumar Nandi
17. By considering the rival submission, the following points arise for my consideration:
1. Whether the learned Trial Court has failed to consider cheque Ex.P.35 and Ex.P.36 in favour of the complainant in the year 2016 for security purpose?
2. Whether the trial court has failed to consider regarding non existence of liability between complainant and accused?
3. What order?
18. On considering the complaint, oral & documentary evidence submitted by rival parties, my answer to the above points are as under:
17 Crl.A.No.189/2021
Point No.1: in the Negative, Point No.2: in the Negative, Point No.3: As per final order ...............for the following;
REASONS
19. Point No.1 and 2:-
These both points are interlinked with each other. In order to avoid repeation of facts and reasons both points taken together for common discussion.
20. In this case, it is the specific case of the complainant that accused have issued cheques Ex.P.35 and Ex.P.36 for discharge of the dues of Rs.10,00,000/- and Rs.5,00,000/- respectively on 10.01.2018. The complainant has taken the specific contention that he has provided services to the accused and the accused are due for total outstanding amount of 18 Crl.A.No.189/2021 Rs.51,27,561/-. Out of that, the accused have issued Ex.P.35 and Ex.P.36 for Rs.10,00,000/- and Rs.5,00,000/-. After that, the complainant presented the said cheques for encashment. The said cheques are returned with an endorsement as 'Stop Payment'. Thereafter, the complainant got issued legal notice Ex.P.39 through registered post. The said notice are served on the accused. The accused has failed to pay the cheque amount covered under these cheques within the stipulated time. Hence, complainant has filed this private complaint.
21. In order to prove these facts, one Sheik Abdul Hussain, who is the legal counsel for the complainant is examined as PW1. He has stepped into the witness box and filed affidavit in lieu of his chief examination. He 19 Crl.A.No.189/2021 has reiterated the allegations made in the complaint. In the cross-examination PW1 stated that he was appointed as vice president to carry out the financial and commercial activities of the complainant company. Further, he answered to the question that the complainant company not provided any technology to the accused. Further he also not denied that the accused No.1 not developed the software. The learned counsel for the accused suggested that there is no due on the part of the accused persons. This suggestions is also denied. Further, he stated that, he has produced invoice pertaining to the due amount of Rs.51,00,000/-, which is marked at Ex.P.3. The learned counsel for the accused suggested that the accused have paid full due up to 2015. This suggestions is denied. Further, he is not aware about the rate of service provided during 20 Crl.A.No.189/2021 2009. Without looking to the documents, he cannot say about the rate of services provided to the accused. He is aware about the nature of the work of the accused company. Further, he stated that non payment of the due commenced from the year 2016. But he does not remember the number of customers attached to the accused technology.
22. PW.1 further stated that he is not produced any documents to show that one vehicle in the software platform. Further stated that accused have issued cheque on 9.01.2018. It is the specific case of the accused that the said two cheques are issued for security purpose as blank cheques. This suggestion is denied.
21 Crl.A.No.189/2021
23. In order to disprove the contention of the complainant, accused No.4 is examined as DW.1. He stated that no formal agreement or contract is entered with the complainant. Further stated that accused No.1 is business customer of the complainant. As per the memorandum of understanding, the complainant provided services and payment is made towards the invoices raised by the complainant. But he later on raised invoices for higher rate. The cheques Ex.P.35 and Ex.P.36 are issued for security purpose on 11.07.2016. When same are issued, both are blank. Later on, the complainant has misused the said cheques, filled them and presented them for encashment with intention to harass the accused persons.
22 Crl.A.No.189/2021
23. In the course of cross-examination DW.1 stated that accused No.1 is a firm and the accused No.2 to 5 are it's partners. They have replied to the notice as per Ex.P.50. As per their instructions their counsel issued reply to the statutory notice issued by the complainant. There is no reference in respect of the cheque numbers in the e-mail dated 11.07.2016 Ex.D.2. They have paid the amount in respect of the invoice Ex.P.27 and P.29. But he admitted that, cheques Ex.P.35 and P.36 were issued for partial discharge of the debt. Further, DW1 stated that the said cheques are issued in the year 2016 not in the year 2018. Further, he stated that the complainant instituted commercial suit bg.No.O.S.No.183/2019 for recovery of Rs.51,27,561/-. Ex.D.1 written by the accused No.2 and DW1. The 23 Crl.A.No.189/2021 learned counsel for the complainant suggested that cheques are issued in the month of January 2018. This suggestions is denied.
25. In view of the rival evidence the complainant produced documents in support of his claim, during the cross-examination DW1 the learned counsel for the complainant suggested that the amount covered not tax invoice i.e., Ex.P.27 and P.29 are paid. There is no answered regarding other amount covered or invoices are paid or not. There is no dispute in respect of Ex.P.1 taken place between accused and complainant. Further, there is no dispute in respect of issuance of cheque, receipt of notice and also reply notice Ex.P.50. In reply notice also the accused have taken contention that, cheques are issued for security purpose. 24 Crl.A.No.189/2021
26. By considering the rival submission made by the learned counsel for the complainant and accused and their rival evidence. Before examining and annalysing the oral and documentary evidence, this court has relied on the reason Judgment and Hon'ble Supreme Court of India, rendered in following case in respect of cheque issued for security purpose as under:-
AIR 2021 SC 5732 Sripathi Singh Vs. State of Jharkand & Anr.
16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. 'Security' in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfillment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified time frame and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section
17. When a cheque is issued and is treated as 'security' towards repayment of an amount with a time period being 25 Crl.A.No.189/2021 stipulated for repayment, all that it ensures is that such cheque which is issued as 'security' cannot be presented prior to the loan or the installment maturing for repayment towards which such cheque is issued as security. Further, the borrower would have the option of repaying the loan amount or such financial liability in any other form and in that manner if the amount of loan 138 and the other provisions of N.I. Act would flow. due and payable has been discharged within the agreed period, the cheque issued as security cannot thereafter be presented.
Therefore, the prior discharge of the loan or there being an altered situation due to which there would be understanding between the parties is a sine qua non to not present the cheque which was issued as security. These are only the defences that would be available to the drawer of the cheque in a proceedings initiated under Section 138 of the N.I. Act. Therefore, there cannot be a hard and fast rule that a cheque which is issued as security can never be presented by the drawee of the cheque. If such is the understanding a cheque would also be reduced to an 'on demand promissory note' and in all circumstances, it would only be a civil litigation to recover the amount, which is not the intention of the statute. When a cheque is issued even though as 'security' the consequence flowing therefrom is also known to the drawer of the cheque and in the circumstance stated above if the cheque is presented and dishonoured, the holder of the cheque/drawee would have the option of initiating the civil proceedings for recovery or the criminal proceedings for punishment in the fact situation, but in any event, it is not for the drawer of the cheque to dictate terms with regard to the nature of litigation.
(Underline by me, for emphases) By following the above said principles I have examined the materials placed before this court. It is specific case of the accused, cheques Ex.P.35 and P.36 on 11.07.2016. In order to prove this case, they have produced the counter foil marked at Ex.D.1. In the 26 Crl.A.No.189/2021 course of course of arguments, the learned counsel for the accused specifically drawn the attention of this court on counter foil at Sl.Number of the cheques Ex.P.35 and Ex.P.36. In the Cheques bg.No.000915 and cheque bg.No.000916 not mentioned its date, its blank one. Further, they have mentioned the amount one cheque for Rs.10,00,000/- and another one is Rs.5,00,000/-. I have meticulously perused the number '6' is mentioned in Ex.D.8 pertaining to the cheque bg.No.000916 by using magnified glass, it discloses that later on Rs.5,00,000/- i.e., number '5' is altered as
6. This itself discloses that this counter foil is altered one. The accused themselves sent e-mail/Ex.D.2 on 11.07.2016 to complainant. Wherein, they have mentioned that two cheques issued, one for 10L (10 lakh) and another one for 5L (5lakh). They have very 27 Crl.A.No.189/2021 well averred about cheques issued for how much amount. But they not stated why figure 6 is mentioned in place of figure 5 cheque pertaining to serial No 000916. It is not fair on part of accused. It is nothing but misguiding the Court.
27. The learned counsel for the accused specifically urged that, accused issued stop payment later to their bank i.e., HDFC Bank Limited, V.V.Puram, Bengaluru on 14.03.2017 at about 3.18pm. The bank issued letter on 3.04.2018. At the time or appreciating of this documents. The learned trial court considered that accused have issued stop payment letter on 03.04.2018 instead of 14.03.2017. It is not correct. By careful reading of the recitals of this certificate Ex.D.5 it discloses that, accused No.1 issued stop payment of 28 Crl.A.No.189/2021 cheques bearing No.000915 and 000916 Ex.P.35 and Ex.P.36 on 14.03.2017. The accused have produced the bank statement pertaining the account bearing No.174989700000056, Ex.P.35 and Ex.P.36 cheque are pertaining to this account only. The account statement Ex.D.4 discloses that other cheques except Ex.P.35 and Ex.P.36 encashed, prior to 2018. I have carefully perused the statement of reveals that, the amount not exceeds more that Rs.5,00,000/- as on 10.01.2018.
28. The learned counsel for the accused strongly relied on the e-mail dated 11.07.2016, 6.3.2017 and other e- mail. In the course of cross-examination DW1 stated that there is no reference of cheques bg.No.000915 and 000916 in E-mail Ex.D.2 but the accused specifically 29 Crl.A.No.189/2021 mentioned that these two cheques for Rs.10,00,000/- and Rs.5,00,000/-. The accused answered as to why '6' is mentioned Ex.D.1 already this court noticed that it is altered one. Therefore, it clearly discloses accused have issued the said cheques for discharge of Rs.10,00,000/- and for Rs.5,00,000/-. This fact is unequivocally admitted by the DW1 in his cross-examination.
29. At this stage, this court relied on Section 20 of N.I Act,
20. Inchoat stamped instruments:- Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written to a holder thereof to make or compete, as the case may be upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall reliable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such mount.
30 Crl.A.No.189/2021Provided that no person other than the holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.
as per this section accused have issued signed cheques Ex.P.35 and P.36 to complainant, if blank cheques are issued, the holder of the cheque(Sec.9 of the N.I Act), the complainant has got every right to fill the said incomplete instrument. Therefore, the question of misusing of the cheques does not arise. The trial court rightly noticed in respect of Ex.p.35 and Ex.P.36 cheques are issued for discharge of the liability of Rs.10,00,000/- and Rs.5,00,000/-.
30. In this case, there is serious disputed in respect of the due on part of the accused. In this regard, the complainant has instituted suit for recovery of 31 Crl.A.No.189/2021 Rs.51,27,561/- in O.S.No.183/2019 before the Commercial Court, as contemplated U/s.118 and 139 of the N.I Act, there is presumption in respect of existence of liability. Therefore, by considering the admissions on the part of the DW.1 and specific case of the complainant, amount covered under the invoices Ex.P.4 to Ex.P.26 it clearly discloses that there is existence of liability on the part of the accused. Therefore,the trial court rightly considered the issuance of cheque and existence of the liability on the part of the accused persons. Therefore, I am of the opinion that the trial court has not committed any error while passing impugned Judgment and order.
31. In this case, there is no dispute regarding cheques Ex.P.35 and Ex.P.36 are pertaining to the 32 Crl.A.No.189/2021 account of the accused No.1 maintained in HDFC Bank, V.V.Puram, Bengaluru. Further, there is no dispute that notice served on the accused prior to filing of the complaint. By considering the date of issuance of cheques, presentation of the cheques for encashment, issuance of statutory notice and presentation of the complaint before the trial court it clearly discloses that prior to filing of the complaint, the complainant has complied all the statutory ingredients. Therefore, the trial court has rightly come to conclusion and passed the Judgment and order in question. Accordingly, Point NO.1 & 2 is answered in the Negative.
32. Point No.2 :-For the forgoing reasons, I proceed to pass the following:
33 Crl.A.No.189/2021
ORDER The Appeal filed by the Appellant U/s.374(3)(a) of Cr.P.C. is hereby dismissed.
Further, the Judgment and order passed by the learned XX ASCJ and ACMM and MACT Bengaluru in C.C.No.1250/2018 dated 04.01.2021. is hereby confirmed.
Office is directed to sent the TCR along with the copy of this order forthwith. (Dictated to Stenographer, typed by her, taken out print corrected by me and then pronounced in the Open-Court on this the 10th day of January 2025) Digitally signed irappanna (Sri. I. P. Naik) by irappanna LXIII Addl. City Civil and Sessions Pavadi Pavadi Naik Judge (CCH-64), Bengaluru City.
Date: 2025.01.13
Naik 17:03:17 +0530
34 Crl.A.No.189/2021
(Order typed vide separate sheet)
ORDER
The Appeal filed by the
Appellant U/s.374(3)(a) of
Cr.P.C. is hereby dismissed.
Further, the Judgment
and order passed by the
learned XX ASCJ and ACMM
and MACT Bengaluru in
C.C.No.1250/2018 dated
04.01.2021. is hereby
confirmed.
Office is directed to sent
the TCR along with the copy
of this order forthwith.
LXIII ACC & SJ(CCH-64),
Bengaluru City
35 Crl.A.No.189/2021